The right to bear arms belongs to you, not to the government.

Attorney
General John Ashcroft, announcing his view that the Second Amendment
guarantees an individual right to arms, noted that
Franklin Roosevelt's Attorney General, Homer Cummings, held the same
view, as demonstrated by Cummings's testimony to Congress. The
Cummings testimony is well known to Second Amendment scholars, but
less noticed, however, is the fact that a second FDR Attorney General
held the same view — Robert Jackson, who served as Attorney General in
1940-41, and who was then appointed to the U.S. Supreme Court.

Before the New
Deal, we don't see a lot of information about the opinions of
attorneys general toward the Second Amendment — mainly because there
was essentially no federal gun control. But from Supreme Court
records, we do know that the attorneys general who served under
Benjamin Harrison and Abraham Lincoln also believed in the individual
right guaranteed by the Second Amendment. And before them, so did
President Andrew Jackson's attorney general. As did President Reagan's
Attorney General Ed Meese.

Robert Jackson

After the surrender of Germany in World War II, some German soldiers
in China aided the Japanese army in the months while Japan continued
to fight alone. The American army captured them, and tried them by
court martial in China as war criminals. The Germans argued that the
trial violated their Fifth Amendment rights not to be tried by court
martial, and pointed out that the Fifth Amendment was not by its terms
limited to American citizens. The case came to the U.S. Supreme Court,
as Johnson v. Eisentrager, 339 U.S. 763 (1950).

Justice
Jackson's majority opinion held that Germans had no Fifth Amendment
rights. He pointed out that if Germans could invoke the Fifth
Amendment, they could invoke the rest of the Bill of Rights. This
would lead to the absurd result of American soldiers, in obedience to
the Second Amendment, being forbidden to disarm the enemy:

"If the Fifth
Amendment confers its rights on all the world except Americans
engaged in defending it, [Jackson was noting that the Fifth
Amendment's prohibition on trial by court-martial does not, by its
own terms, apply to soldiers in the standing army or to militiamen
engaged in militia duty], the same must be true of the companion
civil-rights Amendments, for none of them is limited by its express
terms, territorially or as to persons. Such a construction would
mean that during military occupation irreconcilable enemy elements,
guerrilla fighters, and 'were-wolves' could require the American
Judiciary to assure them freedoms of speech, press, and assembly as
in the First Amendment, right to bear arms as in the Second,
security against 'unreasonable' searches and seizures as in the
Fourth, as well as rights to jury trial as in the Fifth and Sixth
Amendments." (emphasis added)

Although the
gun-prohibition lobbies would have you believe that the Second
Amendment protects only state governments, not individuals, the
"irreconcilable enemy elements, guerrilla fighters, and 'were-wolves'"
in Justice Jackson's hypothetical are obviously not American state
governments. Instead they are individuals, and as individuals would
enjoy Second Amendment rights, if the Second Amendment were to apply
to non-Americans.

The characters
in the Jackson hypothetical are not militia members either. A militia
is an organized force under government control. But "guerrilla
fighters" or "were-wolves" are small groups or individuals functioning
in enemy territory beyond the reach of any friendly government. The
legal distinction was of great importance during World War II.
Switzerland, for example, made extensive plans for its militia forces
(i.e., almost the entire able-bodied adult male population) to resist
a German invasion to the last man. But the Swiss government also
warned its citizens not to engage in guerrilla warfare on their
own; the militiamen fighting the Germans would be entitled to the
protection of the rules of war and international conventions, but
guerrillas would not.

The Benjamin Harrison administration

During the nineteenth century, the official Supreme Court reports
included summaries of counsels' arguments. During the Benjamin
Harrison administration, the federal ban on the mailing of lottery
tickets came before the Supreme Court. William H.H. Miller was then
Attorney General, and he assigned the argument in the case to
Assistant Attorney General Maury, whose brief presumably reflected the
Attorney General's views. The Attorney General's office defended the
federal mailing ban, by arguing that even though it was a restriction
on a Bill of Rights freedom, the Constitution allowed some
restrictions: "Freedom of the press, like freedom of speech, and 'the
right to keep and bear arms,' admits of and requires regulation, which
is the law of liberty that prevents these rights from running into
license." In re Rapier, 143 U.S. 110, 131 (1892).

The argument
obviously reflected the view that freedom of speech, of the press, and
the right to arms, are all individual rights that are subject to
regulation

The Lincoln and Johnson administrations

During the Civil War, in 1864, an Indiana man, Lambdin P. Milligan,
was charged with aiding the southern rebellion against the national
government. Although Indiana was under full union control, and courts
in Indiana were functioning, Milligan was tried before a military
court-martial and sentenced to death. In 1866, a unanimous Supreme
Court overturned Milligan's conviction, holding that martial law can
only be applied in theaters of war, and not in areas where the civil
courts were functioning. Ex Parte Milligan, 71 U.S. 2 (1866).

The Court did
not discuss the Second Amendment, but in argument to the Court, the
Attorney General of the United States did. During the argument before
the Court, Milligan's lawyers had claimed that Congress could never
impose martial law. They pointed out that the Fourth Amendment (no
searches without warrants), the Fifth Amendment (no criminal trials
without due process), and the Sixth Amendment (criminal defendants
always have a right to a jury trial) do not contain any exceptions for
wartime.

Attorney
General James Speed had been appointed by Lincoln, and continued to
hold office under Andrew Johnson. The Attorney General, defending the
legality of Milligan's having been sentenced to death by
court-martial, argued that under conditions of war, the protections of
the Bill of Rights do not apply. Thus, the federal government could
disarm a rebel, without violating his Second Amendment right to keep
and bear arms. The Attorney General urged the Court to construe the
Second, Third, Fourth, Fifth and Sixth Amendments in pari materia:

"After war is
originated, whether by declaration, invasion, or insurrection, the
whole power of conducting it, as to manner, and as to all the means
and appliances by which war is carried on by civilized nations, is
given to the President. He is the sole judge of the exigencies,
necessities, and duties of the occasion, their extent and duration …

"Much of the
argument on the side of the petitioner will rest, perhaps, upon
certain provisions not in the Constitution itself, and as originally
made, but now seen in the Amendments made in 1789: the fourth,
fifth, and sixth amendments. … It will be argued that the fourth,
fifth, and sixth articles, as above given, are restraints upon the
war-making power; but we deny this. All these amendments are in pari material, and if either is a restraint upon the President
in carrying on war, in favor of the citizen, it is difficult to see
why all of them are not. Yet will it be argued that the fifth
article would be violated in 'depriving if life, liberty, or
property, without due process of law,' armed rebels marching to
attack the capital? Or that the fourth would be violated by
searching and seizing the papers and houses of persons in open
insurrection and war against the government? It cannot properly be
so argued, any more than it could be that it was intended by the
second article (declaring that 'the right of the people to keep and
bear arms shall not be infringed') to hinder the President from
disarming insurrectionists, rebels, and traitors in arms while he
was carrying on war against them.

"These, in
truth, are all peace provisions of the Constitution and, like all
other conventional and legislative laws and enactments, are silent
amidst arms, and when the safety of the people becomes the supreme
law.

"This, then,
is the only expressed constitutional restraint upon the President as
to the manner of carrying on war. There would seem to be no implied
one; on the contrary, while carefully providing for the privilege of
the writ of habeas corpus in time of peace, the Constitution takes
it for granted that it will be suspended 'in case of rebellion or
invasion (i.e., in time of war), when the public safety requires
it'."

Thus, the
attorney general explained, the Second Amendment belongs to
individuals, but if a Confederate rebel were disarmed, his Second
Amendment right would not be violated, since the Second Amendment
would not apply to him — even though the Second Amendment carries no
explicit exception for wartime. Likewise, if Congress declared martial
law in a region, a civilian would be subjected to a court martial,
rather than trial by jury, even though the Sixth Amendment (which
guarantees jury trials) has no explicit exception for wartime. The
attorney general plainly saw the Second Amendment as guaranteeing an
individual right.

The United
States government also made another argument showing that the Second
Amendment belongs to individuals. On behalf of Milligan, attorney
David Dudley Field had presented a passionate and superb argument,
explaining that the ultimate issue at bar was the supremacy of the
civil power over the military, a principle at the very heart of
Anglo-American liberty and republican government.

Field had made
much of the fact that the Fifth Amendment's requirement that persons
could only be tried if they had first been indicted by a grand jury
had an explicit exception for military circumstances ("except in cases
arising in the land or naval forces, or in the militia when in actual
service in time of war or public danger"). Field pointed out that
Milligan (an Indiana civilian with Confederate sympathies) was
obviously not within the terms of the exception.

In response,
the attorney general turned the argument over to Benjamin Franklin
Butler. A very successful lawyer, Butler had been a prominent Union
General during the Civil War; a few months after his Supreme Court
argument, Butler would be elected to Congress from Massachusetts, and
would become one of the leading Radical Republicans.

Butler told the
Supreme Court that the whole Bill of Rights contained implicit
exceptions that were not stated in the text. For example, despite the
literal language of the Fifth and Second Amendments, slaves in
antebellum America had been deprived of liberty without due process
and had been forbidden to possess arms:

"[T]he
constitution provides that 'no person' shall be deprived of liberty
without due process of law. And yet, as we know, whole generations
of people in this land — as many as four millions of them at one
time — people described in the Constitution by this same word,
'persons,' have been till lately deprived of liberty ever since the
adoption of the Constitution, without any process of law whatever.

"The
Constitution provides, also, that no 'person's' right to bear arms
shall be infringed; yet these same people, described elsewhere in
the Constitutions as 'persons,' have been deprived of their arms
whenever they had them."

Butler's point,
presented on behalf of the attorney general, was that the right to
arms and the right not to be deprived of liberty without due process
were individual rights guaranteed to all "persons." Yet despite the
literal guarantee to all "persons," slaves had been deprived of their
liberty without a fair trial, and had not been allowed to own or carry
guns. Thus, there must be an implicit "slavery exception" in the
Second Amendment and the Fifth Amendment. And if there could be an
unstated "slavery exception," there could also be an unstated
"in-time-of-war" exception.

Butler's
argument is totally incompatible with the claim that the Second
Amendment right does not belong to individuals. According to
gun-prohibition advocates, the Second Amendment can only be violated
when the federal government interferes with state militias. But there
were no federal laws forbidding states to enroll slaves in the state
militias. (The federal Militia Act of 1792 enrolled whites only, but
the Act did not prevent the states from structuring their own militias
as they saw fit.) Although there were no federal laws interfering with
state militias, there were state laws forbidding individual blacks
from possessing arms. So Butler's argument assumed that the Second
Amendment right to arms inhered in individuals (including slaves, if
the Amendment were read literally, with no implied exception for
slavery).

The Andrew Jackson administration

During the presidency of Andrew Jackson, Roger Taney served as
Attorney General from 1831 to 1833, later becoming Chief Justice of
the Supreme Court. As
Taney's opinion in the famous Dred Scott case made clear,
Taney recognized the Second Amendment as an individual right.

The Reagan administration

More recently, President Reagan's Attorney General, Edwin Meese, now a
scholar at the Heritage Foundation, signed the
amicus brief of Academics for the Second Amendment, endorsing
the individual-rights position in the Fifth Circuit's hearing of the
appeal in United States v. Emerson.

And so,
Attorney General Ashcroft's recent letter on the Second Amendment puts
him out of step with General Reno, but into some rather better
company.

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